Estabrooks and Estabrooks (Child support)

[2020] AATA 5577

Estabrooks and Estabrooks (Child support) [2020] AATA 5577 (11 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019878, 2020/SC019910 and

2020/SC019911

APPLICANT:  Mr Estabrooks

OTHER PARTIES:  Child Support Registrar

Ms Estabrooks

TRIBUNAL:Member F Staden

DECISION DATE:  11 November 2020

DECISION:

The decisions under review are set aside and the matters sent back to the Child Support Registrar for reconsideration in accordance with the direction that 50% of the land mortgage and house mortgage payments under review are non-agency payments under section 71A of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made to a third party in lieu of child support – intention of both parents – decision under review set aside and remitted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This review is about whether some or all of various house mortgage and land mortgage payments made by Mr Estabrooks can be credited towards his child support liability.

2. Mr Estabrooks and Ms Estabrooks are the separated parents of children born in 2011 and 2015 (the children).

3. Most recently, there has been a child support assessment for this case from 26 September 2019. Since that date, the children have been assessed as being in the greater than primary care (100%) of Ms Estabrooks. Mr Estabrooks is the parent liable to pay child support.

4. Ms Estabrooks opted for collection of child support by the then Department of Human Services – Child Support (Child Support) from 20 December 2019.

   2020/SC019878

5. On 2 March 2020, Mr Estabrooks requested Child Support to treat the following payments, total $1,369.22, as non-agency payments:

   Land mortgage          $252.84          17 February 2020

   House mortgage        $431.77          17 February 2020

   Land mortgage          $252.84          21 February 2020

   House mortgage        $431.77          21 February 2020

6. On 10 March 2020, a Child Support decision maker decided to credit all the above payments as non-agency payments based on an understanding that Ms Estabrooks agreed with the payments being in lieu of child support.

7. Ms Estabrooks lodged an objection to this decision on 22 May 2020 with a request for an extension of time to lodge her objection. The extension of time was granted on 4 September 2020.

8. On 16 September 2020, an objections officer partly allowed Ms Estabrooks’ objection and decided to credit only 50% of the payments, $684.61, as prescribed non-agency payments.

9. On 17 September 2020, Mr Estabrooks applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

   2020/SC019910

10. On 30 March 2020, Mr Estabrooks requested Child Support to treat the following payments, total $2,053.83, as non-agency payments:

    Land mortgage          $252.84            6 March 2020

    House mortgage        $431.77            6 March 2020

    Land mortgage          $252.84          13 March 2020

    House mortgage        $431.77          13 March 2020

    Land mortgage          $252.84          20 March 2020

    House mortgage        $431.77          20 March 2020

11. On 17 April 2020, a Child Support decision maker decided to credit all the above payments as prescribed non-agency payments.

12. Ms Estabrooks lodged an objection to this decision on 22 May 2020.

13. On 16 September 2020, an objections officer partly allowed Ms Estabrooks’ objection and decided to credit only 50% of the payments, $1,026.90, as prescribed non-agency payments.

14. On 22 September 2020, Mr Estabrooks applied to the tribunal for review of the objections officer’s decision.

    2020/SC019911

15. On 28 April 2020, Mr Estabrooks requested Child Support to treat the following payments, total $2,738.44, as non-agency payments:

    Land mortgage          $252.84            7 April 2020

    House mortgage        $431.77            7 April 2020

    Land mortgage          $252.84          15 April 2020

    House mortgage        $431.77          15 April 2020

    Land mortgage          $252.84          17 April 2020

    House mortgage        $431.77          17 April 2020

    Land mortgage          $252.84          24 April 2020

    House mortgage        $431.77          24 April 2020

16. On 5 May 2020, a Child Support decision maker decided to credit all the above payments as prescribed non-agency payments.

17. Ms Estabrooks lodged an objection to this decision on 22 May 2020.

18. On 18 September 2020, an objections officer partly allowed Ms Estabrooks’ objection and decided to credit only 50% of the payments, $1,369.22, as prescribed non-agency payments.

19. On 22 September 2020, Mr Estabrooks applied to the tribunal for review of the objections officer’s decision.

    2020/SC019878, 2020/SC019910 and 2020/SC019911

20. A hearing in relation to all three matters was held on 11 November 2020 in Canberra. Mr Estabrooks and Ms Estabrooks gave sworn evidence by telephone. The tribunal also had before it papers provided by Child Support (205 pages), copies of which were provided to the parties prior to the hearing.

21. Relevant aspects of the evidence before the tribunal will be referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The key issue which arises in this case is whether some or all of the above listed land mortgage and house mortgage payments made by Mr Estabrooks can be credited to his child support liability as non-agency payments or prescribed non-agency payments.

CONSIDERATION

1. Relevantly here, the tribunal found:

   ·     The land mortgage and house mortgage referred to above are in the joint names of Mr Estabrooks and Ms Estabrooks. It is accepted that the responsibility for repayment of these mortgages is shared equally between the parties.

   ·     Ms Estabrooks and the children live in the property associated with the land mortgage and house mortgage.

   ·     The payments made by Mr Estabrooks are the total required payments for the land mortgage and house mortgage for a week, that is, they include Ms Estabrooks’ share of the payment.

2. Under section 30 of the Act, when Child Support registers a child support liability for collection the amounts payable become a debt due to the Commonwealth and are payable to the Child Support Registrar. In some circumstances, payments made directly to a payee or to a third party may be credited against a child support liability that is registered for collection by Child Support.

3. Under section 71A of the Act, an amount paid by a payer to a third party can be credited provided there is an enforceable maintenance liability and both parents intend that the payment is in satisfaction of child support payable under that liability.

4. There has been an enforceable child support liability for this case since 20 December 2019. This was therefore in place when Mr Estabrooks made the land mortgage and house mortgage payments under consideration here. It has been previously found that Mr Estabrooks and Ms Estabrooks did not have the mutual intention that half of these payments, Ms Estabrooks’ share, was in lieu of child support. However, at hearing Ms Estabrooks stated that she did accept that her half of these payments was in lieu of child support. The payments can therefore be credited under section 71A of the Act.

5. The tribunal noted that there may have been payments for which Mr Estabrooks had provided evidence, for example, those of 7 February 2020, which had not yet been considered in relation to his child support liability. Mr Estabrooks indicated that he would be checking that all relevant payments had been considered by Child Support. Ms Estabrooks said that her concern was that any such payments should be identified by the date when they were paid into the relevant loan accounts. That way she would know what was paid when and there would be no confusion about what amounts were to be treated as being in lieu of child support.

DECISION

The decisions under review are set aside and the matters sent back to the Child Support Registrar for reconsideration in accordance with the direction that 50% of the land mortgage and house mortgage payments under review are non-agency payments under section 71A of the Child Support (Registration and Collection) Act 1988.